P. v. johnson

Filed 9/9/08 P. v. johnson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE COURT:

IT IS ORDERED that the opinion filed herein on July 24, 2008, be modified in the following particulars:

On page 1 (the title page), line 2 under the caption listing, Affirmed with directions is deleted, and in its place the following:

Conviction affirmed, sentence vacated and cause remanded for resentencing.

On page 2, lines 12 through 15 of the first paragraph, the sentence beginning We further conclude and ending remand for resentencing is deleted, and the following sentence is inserted in its place:

We further conclude that consideration of defendants prior convictions to impose the upper term breached an implicit term
of his plea bargain, which requires vacating the sentence and remanding for resentencing.

On page 2, lines 15 through 16 of the first paragraph, the sentence Therefore, we affirm the judgment. is deleted in its entirety.

On page 4, under Discussion, part II, the last sentence beginning We further conclude is deleted and replaced with the following sentence:

We further conclude that the plea bargain prohibited consideration of such priors in sentencing which requires us to vacate the sentence and remand the matter for resentencing.

This modification does not constitute a change in the judgment.

^{___________________________________________________________________}

_{MALLANO, P. J. ROTHSCHILD, J. NEIDORF, J.}^*

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^* Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.